WAE 2 Flashcards
What is the effect of an obliteration made to a will after execution under s21 Wills Act 1837?
An obliteration (deletion/erasure) made after execution is valid only if:
It makes the original wording not apparent by natural means (e.g. reading normally or using a magnifying glass),
And the obliteration was made by the testator with intention to revoke.
If so, the deleted wording is treated as revoked and will not be admitted to probate.
BUT if the original wording is still readable, the alteration is invalid unless properly executed (signed by T + 2 witnesses).
A testator crosses out a beneficiary’s name in their will and writes in a new name, but doesn’t sign or get it witnessed. What is the legal presumption?
If original wording is still apparent by natural means → the original gift stands.
If obliterated beyond recognition → the gift is revoked (unless conditional revocation revives the original).
The new name/gift is invalid unless properly executed.
How can an alteration made after execution be valid under s21 Wills Act 1837?
To be valid under s21 Wills Act 1837, a post-execution alteration must be:
Signed by the testator
In the presence of two witnesses (who also sign) OR
Be an obliteration where the original wording is not apparent.
What two things can make an obliteration to a will valid under s21 Wills Act 1837?
If properly executed like a will (testator + 2 witnesses); OR
If the original wording is not apparent by natural means and it was made with intention to revoke.
Is a handwritten alteration valid if made before execution but not initialled?
✅ Yes — as long as the alteration was present when the will was signed, it forms part of the valid will.
✍️ Initialling is recommended, but not legally required.
What is “conditional revocation” in the context of wills?
Where a testator revokes a will (or clause) on the assumption that a new valid will/gift will replace it.
If the new clause/will is invalid, the court may treat the revocation as ineffective. Known as dependent relative revocation.
What makes original wording “not apparent” under s21 Wills Act 1837?
If it cannot be read by natural means (e.g. naked eye, light, magnifying glass), it is “not apparent.”
Using infrared, chemicals, or forensic methods doesn’t count — those are forbidden methods.
What is presumed when a blank space in a will is completed by handwriting?
That it was filled in before execution, and the clause is valid without further attestation or evidence — per s21 Wills Act 1837.
How can the presumption that a blank was completed before execution be rebutted?
Only with clear evidence that the insertion was made after execution — e.g. reliable extrinsic or intrinsic proof.
What is a codicil?
A codicil is a formal document used to add to, modify, or revoke part of an existing will without replacing the whole will.
What is the effect of a codicil on the date of a will?
It republishes the will — the entire will takes effect as if made on the codicil date.
Effects:
identification of beneficiaries (e.g. “my wife”)
Class gifts (e.g. “my grandchildren”)
Applicable IHT laws at the time of death
What happens if a second will gives only specific legacies, contains no revocation clause, and says nothing about the residue?
The first will may still govern the residue.
Without an express revocation clause or inconsistent terms dealing with the full estate, the second will does not revoke the first will entirely.
Both may need to be admitted to probate.
WHAT Can a codicil “save” a gift that would otherwise be void under s15 Wills Act 1837?
✅ Yes. If a beneficiary witnessed the original will (making their gift void under s15), a later validly executed codicil that republishes the will and is witnessed by different witnesses can “revive” the gift.
The will is treated as re-executed on the codicil date, avoiding s15.
